*219 On May 7, 2012, the Appeals Office issued to petitioner a notice of determination, sustaining the proposed lien and levy. In the notice of determination the Appeals Office determined 2013 Tax Ct. Memo LEXIS 220">*229 that (1) petitioner was not eligible for penalty abatement because he did not meet the reasonable cause requirements, and (2) petitioner was not eligible for an OIC because he had failed to properly request an OIC and had not yet filed his 2010 and 2011 returns. The Appeals Office did not address petitioner's interest abatement request in the notice of determination.

Section 6321 imposes a lien on all property and property rights of a taxpayer liable for taxes where a demand for the payment of the taxes has been made and the taxpayer fails to pay. The IRS is authorized to file an NFTL with respect to taxpayers who have outstanding tax liabilities and fail to pay after notice and demand. Sec. 6323. Section 6320(a) requires the Secretary ⁴ to send written notice to the taxpayer of the filing of an NFTL and of the taxpayer's right to an administrative hearing on the matter. The conduct and scope of section 6320*220 hearings are governed by section 6330(c), (d) (other than paragraph (2)(B)), (e), and (g). Sec. 6320(c).

The Secretary is authorized to collect tax by 2013 Tax Ct. Memo LEXIS 220">*230 levy upon the taxpayer's property if any taxpayer liable to pay any tax neglects or refuses to pay such tax within 10 days after notice and demand for payment. Sec. 6331(a). Section 6330(a) requires the Secretary to send written notice to the taxpayer of the taxpayer's right to request a section 6330 hearing before a levy is made. If the taxpayer makes a timely request for a hearing, a hearing is held by the IRS Office of Appeals. Sec. 6330(b).

At a section 6320 or 6330 hearing a taxpayer may raise any relevant issue, including appropriate spousal defenses, challenges to the appropriateness of the collection action, and collection alternatives, such as an OIC or an installment agreement. Sec. 6330(c)(2)(A). Additionally, the taxpayer may contest the validity of the underlying tax liability, but only if the taxpayer did not otherwise have an opportunity to dispute the tax liability. Sec. 6330(c)(2)(B); Sego v. Commissioner, 114 T.C. 604">114 T.C. 604, 114 T.C. 604">609 (2000).

Following a hearing, the Appeals Office must issue a notice of determination regarding the appropriateness of the proposed collection action. The Appeals Office is required to take into consideration: (1) verification *221 presented by the Secretary 2013 Tax Ct. Memo LEXIS 220">*231 that the requirements of applicable law and administrative procedure have been met, (2) relevant issues raised by the taxpayer, and (3) whether the proposed collection action appropriately balances the need for efficient collection of taxes with the taxpayer's concerns regarding the intrusiveness of the proposed collection action. Sec. 6330(c)(3); Wadleigh v. Commissioner, 134 T.C. 280">134 T.C. 280, 134 T.C. 280">287-288 (2010).

Pursuant to sections 6320(c) and 6330(d)(1), we have jurisdiction to review the Appeals Office's determination. See Murphy v. Commissioner, 125 T.C. 301">125 T.C. 301, 125 T.C. 301">308 (2005), aff'd, 469 F.3d 27">469 F.3d 27 (1st Cir. 2006). Where the validity of the underlying tax liability is properly at issue, we review the determination regarding the underlying tax liability de novo. Sego v. Commissioner, 114 T.C. 604">114 T.C. 610; Goza v. Commissioner, 114 T.C. 176">114 T.C. 176, 114 T.C. 176">181-182 (2000). Where the validity of the underlying tax liability is not properly at issue, we review the Appeals Office's determination for abuse of discretion. Sego v. Commissioner, 114 T.C. 604">114 T.C. 610; Goza v. Commissioner, 114 T.C. 176">114 T.C. 182. In reviewing for abuse of discretion, we must uphold the Appeals Office's determination unless it is arbitrary, capricious, or without 2013 Tax Ct. Memo LEXIS 220">*232 sound basis in fact or law. See, e.g., Murphy v. Commissioner, 125 T.C. 301">125 T.C. 320; Taylor v. Commissioner, T.C. Memo. 2009-27, 97 T.C.M. 1109">97 T.C.M. 1109, 1116 (2009). However, we can uphold the Appeals Office's determination *222 only on grounds actually relied upon by the Appeals officer in the notice of determination. See SEC v. Chenery Corp., 318 U.S. 80">318 U.S. 80, 318 U.S. 80">93-95, 63 S. Ct. 454">63 S. Ct. 454, 87 L. Ed. 626">87 L. Ed. 626 (1943); Antioco v. Commissioner, T.C. Memo. 2013-35, at *24-*25; Jones v. Commissioner, T.C. Memo. 2012-274, at *22-*23.

Respondent concedes that petitioner was entitled to contest the validity of the underlying liability for the additions to tax because he had not received a notice of deficiency. Accordingly, we have jurisdiction to review the Appeals Office's determination with respect to the underlying liability for the additions to tax, and we review that determination de novo. We also review for abuse of discretion respondent's determination to proceed with the collection by lien or levy of petitioner's 2007-09 tax liabilities.

The Commissioner bears the burden of production with respect to the taxpayer's liability for additions to tax and must produce sufficient evidence indicating 2013 Tax Ct. Memo LEXIS 220">*233 that it is appropriate to impose the additions to tax. Seesec. 7491(c); Higbee v. Commissioner, 116 T.C. 438">116 T.C. 438, 116 T.C. 438">446-447 (2001). Once the Commissioner meets his burden of production, the taxpayer must come forward with persuasive evidence that the Commissioner's determination is incorrect or that the taxpayer *223 had reasonable cause or substantial authority for the position. See Higbee v. Commissioner, 116 T.C. 438">116 T.C. 447.

Section 6651(a)(1) authorizes the imposition of an addition to tax for failure to timely file a return, unless it is shown that such failure is due to reasonable cause and not due to willful neglect. See United States v. Boyle, 469 U.S. 241">469 U.S. 241, 469 U.S. 241">245, 105 S. Ct. 687">105 S. Ct. 687, 83 L. Ed. 2d 622">83 L. Ed. 2d 622 (1985); United States v. Nordbrock, 38 F.3d 440">38 F.3d 440, 38 F.3d 440">444 (9th Cir. 1994). A failure to timely file a Federal income tax return is due to reasonable cause if the taxpayer exercised ordinary business care and prudence but nevertheless was unable to file the return within the prescribed time. Seesec. 301.6651-1(c)(1), Proced. & Admin. Regs. Circumstances that are considered to constitute reasonable cause for failure to timely file a return are typically those outside of the taxpayer's control, 2013 Tax Ct. Memo LEXIS 220">*234 including, for example: (1) unavoidable postal delays; (2) the timely filing of a return with the wrong office; (3) the death or serious illness of the taxpayer or a member of the taxpayer's immediate family; (4) a taxpayer's unavoidable absence from the United States; (5) destruction by casualty of a taxpayer's records or place of business; and (6) reliance on the erroneous advice of an IRS officer or employee. McMahan v. Commissioner, 114 F.3d 366">114 F.3d 366, 114 F.3d 366">369 (2d Cir. 1997), aff'gT.C. Memo. 1995-547. However, the unavailability of *224 information or records does not necessarily establish reasonable cause, see Estate of Vriniotis v. Commissioner, 79 T.C. 298">79 T.C. 298, 79 T.C. 298">311 (1982); Elec. & Neon, Inc. v. Commissioner, 56 T.C. 1324">56 T.C. 1324, 56 T.C. 1324">1342-1343 (1971), aff'd without published opinion, 496 F.2d 876">496 F.2d 876 (5th Cir. 1974); Cayabyab v. Commissioner, T.C. Memo. 2012-89, 103 T.C.M. 1479">103 T.C.M. 1479, 1480 (2012), and mere forgetfulness does not constitute reasonable cause, see Beck Chem. Equip. Corp. v. Commissioner, 27 T.C. 840">27 T.C. 840, 27 T.C. 840">859 (1957).

The parties agree that petitioner failed to timely file his Federal income tax returns for 2007-09. Accordingly, respondent has met his burden of producing evidence showing that the additions 2013 Tax Ct. Memo LEXIS 220">*235 to tax under section 6651(a)(1) for 2007-09 are appropriate.

Petitioner contends that he exercised ordinary business care and prudence but was unable to timely file his 2007-09 returns because of the problems he faced in filing his 2005 and 2006 returns. Petitioner was incarcerated during the time that he would have otherwise filed his 2005 return, and he forgot about filing the 2005 return until he began preparing his 2006 return. Because his business and tax records for 2005 and part of 2006 were stolen from his attorney's car and his tax software did not allow him to properly complete his 2006 return until he completed his 2005 return, petitioner contends he was unable to timely file his *225 2005 and 2006 returns. Petitioner asked an IRS employee for guidance with respect to the filing of his 2005 and 2006 returns, but he did not document the advice that the IRS employee provided.

The issue of whether the facts recited above establish reasonable cause for purposes of the section 6651(a)(1) additions to tax for 2005 and 2006 is not before us. The only additions to tax that are at issue are those for 2007-09.

Petitioner has not proven that he made a diligent and reasonable effort to timely 2013 Tax Ct. Memo LEXIS 220">*236 file his 2007-09 returns. Petitioner's 2007-09 records were not stolen and were presumably available to him. He could have used those records to prepare and timely file his 2007-09 returns. Even if the information available to petitioner was not complete, he should have timely filed the 2007-09 returns and later filed amended returns to correct any mistakes caused by any missing information. See Estate of Vriniotis v. Commissioner, 79 T.C. 298">79 T.C. 311; Elec. & Neon, Inc. v. Commissioner, 56 T.C. 1324">56 T.C. 1342-1343; Cayabyab v. Commissioner, 103 T.C.M. 1479">103 T.C.M. (CCH) at 1480. We therefore conclude that petitioner has not shown that he exercised ordinary business care and prudence with respect to his failure to timely file his 2007-09 returns. Accordingly, petitioner is liable for the additions to tax under section 6651(a)(1) for 2007-09.

Section 6651(a)(2) imposes an addition to tax for failure to pay the amount of tax shown on a taxpayer's Federal income tax return on or before the payment due date, unless such failure is due to reasonable cause and not due to willful neglect. ⁵ The section 6651(a)(2) addition to tax applies only when an amount of tax is shown 2013 Tax Ct. Memo LEXIS 220">*237 on a return filed by the taxpayer or prepared by the Secretary. Sec. 6651(a)(2), (g)(2); Cabirac v. Commissioner, 120 T.C. 163">120 T.C. 163, 120 T.C. 163">170 (2003). A failure to timely pay the amount shown on a Federal income tax return is due to reasonable cause if the taxpayer exercised ordinary business care and prudence in providing for the timely payment of his tax liability but nevertheless was either unable to pay the tax or would suffer an undue hardship if he paid on the due date. Seesec. 301.6651-1(c)(1), Proced. & Admin. Regs.

The parties agree that petitioner failed to pay the amounts of tax shown on his 2007-09 returns on or before the payment due date. Accordingly, respondent has met his burden of producing evidence showing that the additions to tax under section 6651(a)(2) for 2007-09 are appropriate.

*227 Petitioner contends that he exercised ordinary business care and prudence but was unable to timely pay the tax shown on his 2007-09 returns because he was unable to timely file those returns. 2013 Tax Ct. Memo LEXIS 220">*238 ⁶ However, as we explained above, see supra pp. 15-16, petitioner has failed to prove that he had reasonable cause for failing to timely file his 2007-09 returns. Moreover, petitioner's purported inability to timely file his 2007-09 returns should not have prevented him from reasonably estimating the amount of tax that he would owe on those returns. We therefore conclude that petitioner has not shown that he exercised ordinary business care and prudence with respect to his failure to pay the amounts of tax shown on his 2007-09 returns on or before the payment due dates.

Section 6654 imposes an addition to tax on an individual 2013 Tax Ct. Memo LEXIS 220">*239 who underpays his estimated tax. The addition to tax is calculated with reference to four required installment payments of the taxpayer's estimated tax liability. Sec. 6654(c). Each required installment of estimated tax is equal to 25% of the "required annual *228 payment". Sec. 6654(d). The "required annual payment" is equal to the lesser of (1) 90% of the tax shown on the individual's return for that year (or, if no return is filed, 90% of his tax for such year), or (2) if the individual filed a return for the immediately preceding taxable year, 100% of the tax shown on that return. Sec. 6654(d)(1)(B) and (C). A taxpayer has an obligation to pay estimated tax only if he has a "required annual payment". Wheeler v. Commissioner, 127 T.C. 200">127 T.C. 200, 127 T.C. 200">211-212 (2006), aff'd, 521 F.3d 1289">521 F.3d 1289 (10th Cir. 2008); see also Mendes v. Commissioner, 121 T.C. 308">121 T.C. 308, 121 T.C. 308">324 (2003).

The parties agree that petitioner was required and failed to make estimated tax payments for 2008. Accordingly, respondent has met his burden of producing evidence showing that the addition to tax under section 6654 is appropriate. Because there is no reasonable cause exception to the section 6654 addition to tax, petitioner is liable for 2013 Tax Ct. Memo LEXIS 220">*240 the addition to tax under section 6654 for 2008.

Petitioner contends that the Appeals Office abused its discretion in sustaining the proposed collection actions because Settlement Officer Breazeale (1) did not allow him to submit an OIC during the section 6320/6330 hearing and (2) failed to address his interest abatement request in the notice of determination.

*229 The administrative record shows that, on October 24, 2011, petitioner asked Settlement Officer Breazeale to first process his penalty abatement request before he submitted his OIC. Petitioner further asked Settlement Officer Breazeale to let him know whether this was unacceptable. Settlement Officer Breazeale noted this request in the case activity record. The administrative record, however, does not show that Settlement Officer Breazeale ever responded to petitioner's request.

By failing to respond to petitioner's request Settlement Officer Breazeale effectively caused petitioner to be under the mistaken impression that he would have an opportunity to submit his OIC—and to become current on his tax reporting obligations—if his penalty abatement request was denied. ⁷ We conclude 2013 Tax Ct. Memo LEXIS 220">*241 that Settlement Officer Breazeale erred in failing to respond to petitioner's request and that therefore Settlement Officer Breazeale effectively denied petitioner an opportunity to submit an OIC during the section 6320/6330 hearing. Under these circumstances, remand is appropriate. Seesec. 6330(c)(2)(A); Lunsford v. Commissioner, 117 T.C. 183">117 T.C. 183, 117 T.C. 183">189 (2001); Churchill v. Commissioner, T.C. Memo. 2011-182, 102 T.C.M. 116">102 T.C.M. 116, 118 (2011).

*230 The administrative record further shows that petitioner requested interest abatement pursuant to section 6404(e) during the section 6320/6330 hearing. The Appeals Office failed to address this issue in the notice of determination. Upon remand, the Appeals Office shall address this issue in a supplemental notice of determination. See Chenery, 318 U.S. 80">318 U.S. at 93-95; Antioco v. Commissioner, at *24-*25; Jones v. Commissioner, at *22-*23.

We have considered the parties' remaining arguments, and to the extent not discussed above, conclude those arguments are irrelevant, moot, or without merit.

To reflect the foregoing,

An appropriate order will be issued.